Kyrgyzstan – President Atambaev Seeks to “Idiot-Proof” the Constitution by Reducing the Power of the Presidency

Constitutional reform has been a national pastime during Kyrgyzstan’s first quarter-century as an independent state.  Since the adoption of the first post-communist constitution in 1993, Kyrgyzstan has introduced new constitutions–or significant constitutional changes–six times.  From 1993 to 2007, under Presidents Akaev and Bakiev, these institutional reforms were designed to concentrate greater power in the presidency and to keep the political opposition off balance.[i]  However, in the wake of the ouster of President Bakiev during a popular revolt in April 2010, former opposition politicians succeeded in pushing through, by referendum, a new constitution that promised to introduce a parliamentary republic in Kyrgyzstan.  The 2010 Constitution contained numerous provisions that reduced the power of the presidency, strengthened the role of the parliament and the prime minister, and protected the opposition.  However, as we noted in an earlier entry on this blog,[ii] the new constitutional order in Kyrgyzstan retained many features that are associated with semi-presidential rather than parliamentary models of government, including direct presidential elections and the subordination of the security services to the office of the president.

Relegated to a single six-year term by the current constitution, President Almazbek Atambaev is now leading an effort to reduce the powers of the presidency and align the country’s institutions with those of classic parliamentarism, following the script of President Sarkisian of Armenia, who recently engineered a transition from a semi-presidential to a parliamentary system.[iii]  The initiative in Kyrgyzstan appears to have the support of the leaders of the country’s five parliamentary parties, which is an unexpected development given that some of these parties had previously favored the return to a stronger presidency.[iv]  Not surprisingly in a country with a vibrant civil society, the consensus of the governing establishment around constitutional reform has generated vigorous opposition from non-governmental organizations, which suspect Atambaev of maneuvering to maintain his political power after he steps down from the presidency.[v]  In the view of some, Atambaev lacks confidence in his ability to ensure that a sympathetic successor will win the next presidential election, and therefore he prefers to take his chances with a parliamentary system, in which his party, the Social Democrats, would play a prominent role.[vi]  For his part, Atambaev has insisted that he is looking forward to a quiet retirement when his term ends in late 2017.  “I am not planning to remain President for a second term or to become prime minister or speaker…..In less than two years, I’ll be going into retirement.  Of course, I’ll sleep and read books, and I haven’t given up my dream of playing the piano.”[vii]

As to why constitutional reform is needed at this juncture, Atambaev points to two dangers for the country under the existing institutional arrangements.  The first is the possibility of “cohabitation,” where two “young hotheads” who are politically and personally at odds occupy the posts of president and prime minister, “with one [the President] controlling the army and the secret police while the other [the Prime Minister] is in charge of the Minister of the Interior, whose forces outnumber those of the army.”[viii] Kyrgyzstan has thus far avoided the perils of cohabitation because Atambaev’s Social Democratic Party has always been in the ruling coalition, usually as the leading party.

The second fear advanced by Atambaev is that the presidential election, always a high-stakes, winner-take-all contest, will be closely contested in 2017. Unlike in his own election in 2011, where he captured 60 percent of the votes and the second-place finisher garnered only 14 percent, Atambaev notes that the next election could be much closer, and “someone could storm the gates [of the White House] if they lost by only .5 percent.”[ix] Atambaev claims that he knows “such dinosaurs,” who are willing to spill the blood of young supporters in this kind of effort.[x]  Therefore, in his view, the country must adopt a constitution that can serve as “defense against a fool” [idiot-proofing].[xi]

However, the proposed constitutional reforms do not merely envisage a reduction in presidential power and a transition from a semi-presidential to a parliamentary model of government.  They also promise to undermine judicial independence, local self-governance, and the freedom of maneuver for individual members of parliament.  In the name of judicial accountability, the reforms would allow the President and Prime Minister, rather than the members of the court, to select the chair and deputy chair of the Supreme Court, who have responsibilities for the allocation of cases and the assessment of judicial performance.  In Russia and some other post-communist countries, this ability to appoint the court’s leadership has seriously eroded judicial independence. [xii]  Furthermore, the constitutional reform would reduce the ability of the judicial branch to restrain executive power by removing the Constitutional Chamber from the judicial system and potentially transforming it into a body issuing merely advisory opinions.[xiii]

The proposed constitutional changes would also strengthen considerably the authority of the leaders of Government and parliament, from the Prime Minister to the heads of parties.  Besides exercising some existing powers now carried out by the President, the Prime Minister would assume several new powers, among them the right to dismiss ministers unilaterally and to appoint the heads of local governments, who are currently selected by local councils.  For their part, party leaders would be empowered to remove from parliament individual rank-and-file members of their fractions who vote against the party line.  Thus, while touted as a corrective to certain perils of the existing constitution, the proposed changes would also weaken the independence of the judiciary and local government and the accountability of the parliamentary leadership.

Standing in the way of the introduction of the new institutional arrangements is Article 4 of the Law on the Enactment of the 2010 Constitution, which states that no changes may be made to the constitution for ten years–that is before 2020–unless they are made by a popular referendum.  Although there is some discussion of trying to circumvent this rule by introducing the reforms through so-called “constitutional laws,” which require a supermajority vote of parliamentary deputies, President Atambaev has stated that he is willing to call a referendum if necessary to revise the constitution.  That Kyrgyzstan has gone almost six years without  a constitutional overhaul is unprecedented, and efforts to block the proposed changes may yet prolong the country’s streak of constitutional stability.

Notes

[i] Eugene Huskey and Gulnara Iskakova, “Narrowing the Sites and Moving the Targets: Institutional Instability and the Development of a Political Opposition in Kyrgyzstan,” Problems of Post-Communism, vol. 58, no. 3 (2011), pp. 3-10.

[ii] Eugene Huskey, “Another Year, Another Prime Minister,” Presidential Power blog, 18 May 2015 http://presidential-power.com/?p=3321.

[iii] On the Armenian reforms, see the entries on this blog by Chiara Lodi, “Armenia–From Semi-presidentialism to parliamentarism,” 16 September 2015, http://presidential-power.com/?p=3805, and “Armenia–The Constitutional Referendum and the Role of the President during the Campaign,” 9 December 2015.  http://presidential-power.com/?p=4231

[iv] Daniiar Karimov, “Atambaev ubedil,” Rossiiskaia gazeta, 2 July 2015. http://www.rg.ru/2015/07/02/konst.html

[v] Aidanbek Akmat uulu, “Konstitutsionnaia reforma: usloviia i sroki,” Radio Azattyk, 13 November 2015. http://rus.azattyk.org/content/article/27362706.html  Some politicians, like Kubatbek Baibolov, former presidential candidate and Minister of Interior, believe that “whatever the real motivations [podopleka] behind the initiative, a transition to a purely parliamentary form of government should be supported.” Ibid.

[vi] Some observers claim that Atambaev favors the indirect election of the president by parliament, but Atambaev has stated that he has no such intent.  As Emil’ Juraev notes, Atambaev’s concerns about his successor relate in part to how he would be treated once he left office.  Without a sympathetic successor, a departing president could be the subject of litigation endangering his property and person.   IWPR Central Asia, “V Kyrgyzstane vnov’ govoriat o politicheskoi reforme,” Global  Voices, 11 December 2015.  https://iwpr.net/ru/global-voices/в-кыргызстане-вновь-говорят-о-политической-реформе

[vii] Leila Saralaeva, “Spasibo nashim liudiam za ikh vyderzhku i spravedlivost’,” Novye litsa, 24 December 2015.  http://www.nlkg.kg/ru/politics/prezident-kyrgyzstana-almazbek-atambaev-spasibo-nashim-lyudyam-za-ix-vyderzhku-i-spravedlivost

[viii] Ibid.

[ix] Ibid.  The reference is to the ousters of former presidents by crowds that climbed over the White House fence in 2005 and 2010, and the unsuccessful attempt by opposition figure Kamchibek Tashiev to do that with a group of supporters in 2013.

[x] Ibid.  Left unsaid by Atambaev is the possibility that candidates from the North and South of the country could be in a close contest, which could endanger the country’s stability and even its integrity.

[xi] This concept was first advanced by an industrial engineer from Toyota, Shigeo Shingo.

[xii] Peter H. Solomon, Jr., “Informal Practices in Russian Justice: Probing the Limits of Post-Soviet Reform,” in Ferdinand Feldbrugge (ed.), Russia, Europe, and the Rule of Law (Leiden: Nijhoff, 2007), pp. 79-92.  According to some of President Atambaev’s critics, the presidency already dictates many judicial decisions, especially in cases of political corruption.  See Makhimur Niiazova, “Femida–chto dyshlo,” Respublika [Bishkek], no. 24, 19 November 2015.  http://www.respub.kg/2015/11/20/%D1%84%D0%B5%D0%BC%D0%B8%D0%B4%D0%B0-%D1%87%D1%82%D0%BE-%D0%B4%D1%8B%D1%88%D0%BB%D0%BE/

[xiii] The Venice Commission and other international organizations have expressed their concerns about the proposed reforms.  Anna Ialovkina, “Kyrgyzstan: popravki v Konstitutsiiu ‘neizbezhny’,” Institute po osveshcheniiu voiny i mira [Institute for War and Peace Reporting], 3 July 2015. RCA Issue 764.  http://www.refworld.org.ru/docid/559fc6344.html

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